Opinion
Hearing Granted Dec. 22, 1941.
Appeal from Superior Court, Los Angeles County; Ruben Schmidt, Judge.
Mandamus proceeding by Eletha R. Dillard against the City of Los Angeles and others to compel the Board of Pension Commissioners of City of Los Angeles to pay petitioner a pension on account of the death of her husband while employed as a police officer. From a judgment for defendants, petitioner appeals.
Affirmed. COUNSEL
Cryer & Jones, of Los Angeles, for appellant.
Ray L. Chesebro, City Atty., Robert J. Stahl, Deputy City Atty., and Edward J. Olstyn, Deputy City Atty., all of Los Angeles, for respondents.
OPINION
PER CURIAM.
In this mandamus proceeding petitioner sought to compel the Board of Pension Commissioners of the City of Los Angeles to pay her a pension because of the death of her husband while employed as a police officer by defendant city. From a judgment in favor of defendants, petitioner has appealed.
Appellant’s husband, Harold C. Dillard, had been employed for nearly fifteen years prior to the date of his death as a police officer of the City of Los Angeles. On the night of January 22, 1940, he was on duty as a radio patrolman, cruising the streets of the city in a radio car in the company of officer Olewine. His hours of duty for that night were from 6:00 p. m. until 2:30 a. m. the following morning. At about 10:15 p. m. the officers arrested a suspect accused of theft and placed him in the rear seat of the radio car in the custody of Dillard. While Olewine was driving toward the police station the prisoner, who turned out to be a "fighting drunk", attacked Dillard, knocking him to the floor of the car and striking Dillard in the chest and side with his fists. Olewine stopped the car and assisted Dillard in subduing the prisoner by knocking him out with a blow on the head. Olewine then proceeded to drive to the receiving hospital and the prisoner, who soon regained consciousness, fought with Dillard during the remainder of the trip to the hospital. After both Dillard and the prisoner were treated for their injuries at the receiving hospital the officers took the prisoner to the police station for booking, arriving at 11:20 p. m. Dillard remained in the station for about 45 minutes and during this time was noticeably pale, perspiring and breathing hard, and found it necessary to lean against the booking desk for support. His distress was so obvious that other officers in the booking room noticed it and the officer in charge, noting Dillard’s apparent illness, directed him to go home. A brother officer, seeing that Dillard appeared to be exhausted and out of breath, offered to take him home but Dillard refused, stating that he could make it in his own car. At about 12:10 or 12:15 a. m. Dillard was taken to the parking lot where he obtained his car and started for his home. At approximately 12:40 a. m. Dillard’s car collided with a parked car at a point which was on the direct route to his home. No one actually witnessed the accident. As a result of injuries received in the collision Dillard died almost immediately. A post mortem examination revealed that Dillard’s chest had been caved in, the sternum and most of his ribs fractured, his lungs contused and collapsed and the heart ruptured. The autopsy also disclosed that Dillard had been suffering from a chronic heart condition, the left descending coronary being sclerotic and its opening reduced 95 per cent by such condition. The medical testimony shows that this condition was so serious that the deceased would have been subject to a heart attack at any time and that Dillard’s distress following the fight with the prisoner was undoubtedly due to his heart condition. The autopsy surgeon also found that deceased’s blood contained .25 per cent alcohol, indicating that he was intoxicated at the time of his death. The persons who were in the presence of Dillard prior to the time when he left the police station to go home testified that they did not see him take a drink at any time while he was on duty, nor did they smell alcohol on his breath. It was established that the direct cause of death was the crushing in of Dillard’s chest and rupture of his heart. Based upon such facts petitioner, on behalf of herself and her infant daughter, submitted an application for a pension under the provisions of section 183 of the Charter of the defendant city. The application was denied upon the ground that Dillard’s death was not the result of any injury received by him during the performance of his duty as a police officer.
Section 183 of the Charter of the City of Los Angeles provides: "Whenever any member of the Fire or Police Department shall die as a result of any injury received during the performance of his duty, or from sickness caused by the discharge of such duty ... then an annual pension shall be paid ..." The trial court found upon stipulated facts that Dillard’s death was not a result of any injury received during the performance of his duty, nor from sickness caused by the discharge of such duty.
Appellant’s argument that the deceased was on duty as a police officer at the time of his death cannot be sustained. Relying upon a general order of the Los Angeles Police Department, appellant contends that a police officer is on duty 24 hours a day. The order provides: "For all purposes a police officer is considered as being on duty 24 hours each day, in the absence of proof to the contrary. All officers are required to perform police service whenever and wherever same comes to their notice or attention." The evident purpose of this order is to require all police officers, when not on regular duty, to hold themselves in readiness for emergency duty at any time and at all times to perform such police service as comes to their notice. It does not require 24 hours of actual police duty, but requires merely that police services be performed whenever necessary. If a police officer is to be considered as being on duty 24 hours each day, it follows that section 183 of the City Charter would have to be construed as providing in effect for absolute life insurance upon the lives of all officers so long as they were members of the police department, for all injuries resulting in death would of necessity be received during the performance of police duty.
Although it is true that pension statutes are to be liberally construed with the view of conferring the intended benefits (Casserly v. City of Oakland, 215 Cal. 600, 12 P.2d 425), the construction of the section in question which is urged by appellant is patently absurd. To hold that section 183 of the Charter was intended to provide for the payment of a pension in all cases where an officer dies while a member of the police department would render the phrases "injury received during the performance of his duty" and "sickness caused by the discharge of such duty" entirely meaningless. Such statutes ordinarily do not create a system of insurance but are designed to protect against hazards involved in service as a policeman or fireman. Renz v. Hibbing Firemen’s Relief Ass’n, 186 Minn. 370, 243 N.W. 713; State v. Board of Trustees, 170 Wis. 154, 174 N.W. 465. In Tripp v. Board of Fire, etc., Commissioners, 94 Cal.App. 720, 271 P. 795, 796, a pension was denied to a fireman who was permanently disabled by causes having no relation to his duties as a fireman. Recovery was sought under a city ordinance which provided a pension for any fireman who "shall become physically disabled by reason of bodily injuries received in, or by reason of sickness caused by, the discharge of the duties of such person". The ordinance was enacted under the provisions of the city charter authorizing the city commission by ordinance to provide a fund for the pensioning of members of the Police and Fire Departments "who have been disabled or become superannuated in the service of the city". Plaintiff contended that the ordinance conflicted with the charter provision and was therefore illegal and that under the charter provision he was entitled to a pension because his disability occurred during a period of time he was employed as a fireman. In disposing of such contention the court held that "disabled in the service of the city" is properly understood to mean "disabled by reason of bodily injuries received in, or by reason of sickness caused by the discharge of the duties of such person", and denied plaintiff any recovery because the evidence showed that his disability was caused by sickness or injury having no relation whatever to his employment as a fireman.
When liberally and reasonably interpreted in the light of the foregoing principles, the Charter section in question must be construed as providing for the payment of a pension when a police officer dies as a result of any injury received while he is actually discharging his duty as such officer, or from sickness caused by the actual discharge of his duties. In other words, there must appear to be some causal connection between the injury or sickness which results in death and the performance of police duty. So construed, the pension provisions would apply not only when a police officer was on regular duty, but when he was on emergency duty as well.
There is no merit in appellant’s contention that at the time of his injury deceased was traveling in the "zone of his employment" and should therefore be held to have been injured in the performance of his duty. It is argued that since it was the duty of deceased as a police officer to be upon the streets of the city of Los Angeles and he was injured while on a street in that city, his injury was received while he was in the "zone of his employment". It is sufficient answer to this contention to point out that police and firemen’s pension laws are intended to protect against the hazards encountered by a policeman or fireman in the performance of his duty. Renz v. Hibbing Firemen’s Relief Ass’n, supra; Carrick v. Sherman, 105 Cal.App. 546, 288 P. 143. Obviously a police officer who is traveling the streets of a city while off duty is subject to no greater hazards than is any other pedestrian or motorist.
In order to sustain the burden of proof it was essential that appellant prove that Dillard’s death was the result of an injury received during "the performance of his duties". Cummings v. Policemen’s Pension Commission of Borough of Belmar, 121 N.J.L. 129, 1 A.2d 399, 400. Although it is contended that the automobile accident which caused Dillard’s death was the result of an injury received during the performance of his duty, i. e., the result of the fight with the prisoner and the consequent illness of Dillard, the evidence does not support such contention. It was established that the direct cause of Dillard’s death was the crushing of his chest and rupture of the heart. The only evidence in the record shows that it was impossible to determine whether there was any causal connection between the illness of deceased resulting from the fight and the subsequent collision in which he lost his life. In answer to the question, "Do you have any way to determine whether or not the accident could have been caused by the liquor or the heart condition", the autopsy surgeon stated: "No, Sir, you could not separate the two factors." In an affidavit filed in connection with the motion for new trial, the autopsy surgeon stated: "... but whether the accident and the impact resulted from a loss of consciousness on account of a heart attack or from the intoxicated condition of the man at that time, is, in the opinion of your affiant, impossible of determination by medical authority." With the evidence in such a state, any conclusion as to whether the injury resulting from the fight was the cause of Dillard’s death would be based upon conjecture or surmise. Evidence of a speculative or conjectural nature is not sufficient upon which to base a finding of fact. Wm. Simpson Construction Co. v. I. A. C., 74 Cal.App. 239, 240 P. 58; Singlaub v. I. A. C., 87 Cal.App. 324, 262 P. 411. There being no other evidence on the point, it follows that appellant has failed to sustain the burden of proof. Even if it be assumed that the medical testimony was sufficient to sustain a finding in appellant’s favor, it is evident that such evidence is susceptible of two inferences, i. e., either Dillard’s death was caused by his heart condition which was aggravated by the fight and therefore received in the performance of his duty, or it was caused by his intoxication which was not in the performance of his duty. Under such circumstances the finding to the effect that Dillard’s death was not caused by any injury received during the performance of his duty could not be disturbed on appeal, since the trial court was at liberty to accept whichever of the two inferences it deemed to be justified under all of the circumstances.
Judgment affirmed.
WOOD, Justice (dissenting).
I dissent. It is established without contradiction that it was the duty of Officer Dillard to work in the radio car from 6 p. m. on January 22 to 2:30 a. m. of the following morning that in the discharge of his duty he made an arrest and that the prisoner while in the radio car attacked Dillard and injured him; that shortly thereafter Dillard took the prisoner to the police station where the officer remained for about 45 minutes; that during this period he was noticeably pale and leaned for support on the booking desk and was so obviously distressed that the officer in charge directed him to go home, although his regular tour in the radio car would not end for two hours; that in accordance with instructions Dillard started for home and was injured while traveling in a direct line to his home by a collision of his car with an automobile parked on the curb; that Dillard’s chest was caved in by the impact of the cars and his heart was ruptured; that the cause of Dillard’s death was "a crushing in of the chest and rupture of the heart"; that at the time of making the arrest Dillard was suffering from a chronic heart ailment, the coronary artery being closed 95 per cent subjecting the officer to a heart attack at any time.
In my opinion Officer Dillard, having received injuries arresting the prisoner which incapacitated him from further duty and made him ill and having been directed by the officer in charge of the station to return to his home two hours before the termination of his scheduled period of work, was in the performance of his duty at the time his automobile collided with the parked car and that he died as a result of an injury received during the performance of his duty. The facts above outlined establish the right of plaintiff to receive the pension provided by the city charter. The only contention which respondent can make in an attempt to defeat plaintiff’s claim must be founded on the fact that the autopsy surgeon testified that the officer’s body contained sufficient alcohol to indicate intoxication and his further testimony that from a medical standpoint it could not be determined whether the accident was caused by the liquor or by the heart condition. In my opinion plaintiff should receive the pension in either event. It is a matter of common knowledge that a great many men in weakened condition drink intoxicating liquor as a stimulant and as an aid to regaining their strength. Apparently Officer Dillard while on his way home drank the liquor with this end in view. In his affidavit presented on motion for a new trial Dr. Anthony stated: "The presence of alcohol in the blood of said deceased taken in connection with the testimony of numerous witnesses to the effect that up to the time he left the parking lot at Temple and Hill Street at about 12:10 or 12:15 A. M. on January 23, 1940, said deceased had not taken liquor, is easily explained from a medical standpoint; that in the opinion of affiant the taking of liquor under the circumstances was the not unnatural act of a man in the exhausted and weakened condition of said deceased at the time, in an effort to stimulate himself for the drive to his home; it was the act of a stricken and dying man to bolster his waning strength for further effort." Dr. Webb, the autopsy surgeon, stated in his affidavit that Officer Dillard was suffering from a heart attack at the time he was sent home, that "said attack was the direct and natural result of the fight he had had with the prisoner in the radio car, in view of the heart condition revealed by the autopsy; that the deceased was so seriously ill at the time and in such precarious condition that he should never have been allowed to attempt to go home alone or to drive an automobile; that he was liable to lose consciousness at any moment and the collision which resulted in his death was what might well have been expected from a driver in his condition at the time."
Pension provisions in a city charter should be given a liberal construction in order to carry out their beneficial purposes. O’Dea v. Cook, 176 Cal. 659, 169 P. 366. In rejecting plaintiff’s petition for a pension the court has refused to place a liberal construction upon the charter provisions in question. The conclusion is inescapable that if Officer Dillard had not received injuries while making the arrest he would not have been sent home and consequently would not have met his death in the manner and at the time shown in evidence.